This is a tricky situation. A conditional green card holder cannot change or adjust her status to another conditional green card while she’s still in conditional status. Plus, if her last entry was as a conditional green card holder (i.e., got her green card then went on vacation in Mexico and re-entered), there is some debate as to whether she can actually adjust her status even once her conditional green card expires and she’s divorced and free to re-marry someone else. In Los Angeles, for instance, CIS takes the position that even if her last entry was as a CLPR, if her CLPR has been terminated for failure to file by (or even late file) the 2 year expiration of her card, and she re-marries, it is technically ok to adjust status.

Regardless, what happens if a expired CLPR remarries (and whether or not she is eligible to adjust status in the US or has to consular process) is that CIS will be concerned that the original marriage was not real but only a means to get a green card, especially since it was short. They will look specifically about why the marriage fell apart, how long the couple was together after the green card was issued, who’s fault it was that they separated, and what kind of joint documentation the couple had together (i.e., long term existence of bank accounts, mortgages, health insurance, etc.) .

The facts differ in every case as does the level of documentation so it is always advisable to speak to a competent immigration attorney to determine the best route for the immigrant to take, whether it is trying to save the conditional green card in thefirst place through a waiver that doesn’t involve the original spouse or starting over from scratch with a new spouse.

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